Holding

The proviso to Section 202(2) CrPC is discretionary; non‑examination of witnesses does not invalidate the committal order unless prejudice is demonstrated and the objection is raised early, so the High Court's order for a fresh inquiry is set aside.

Summary

The Excise Inspector filed a complaint under the Kerala Abkari Act before a Judicial Magistrate, who, without examining any of the ten listed witnesses, committed the case to the Sessions Court because the offences were exclusively triable there. The accused later raised, during arguments, an objection that the magistrate had failed to comply with the proviso to Section 202(2) of the Criminal Procedure Code, which requires examination of all witnesses when the offence is exclusively triable by a Sessions Court. The High Court held the proviso to be mandatory and ordered a fresh inquiry, which the Supreme Court reversed, holding that the magistrate's power to hold an inquiry under Section 202 is discretionary and non‑examination of witnesses does not vitiate the committal order unless prejudice is shown and the objection is raised at an early stage under Section 465. Consequently, the High Court's order directing a fresh inquiry was set aside and the Sessions Court was directed to complete the trial on its merits. The Court also clarified the interplay of Sections 200, 202, 208 and 465 CrPC and affirmed that the proviso, though worded with "shall", is not an absolute mandatory requirement.

Issues considered

Whether the proviso to Section 202(2) CrPC is mandatory or discretionary when the offence is exclusively triable by a Sessions Court.
Whether the failure to examine witnesses in the committal magistrate court vitiates the committal order and subsequent trial.
Whether an objection to such non‑examination must be raised at an earlier stage under Section 465 CrPC.
Interpretation of Section 208 CrPC regarding the magistrate's duty to furnish documents to the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 200, s. 202(2), s. 203, s. 204, s. 208, s. 209, s. 465
Kerala Abkari Acts. 56, s. 57-A

Subjects

Section 202(2) CrPCcommittal ordermandatory vs discretionarySection 465 CrPCwitness examinationKerala Abkari Actcriminal procedureappealfresh inquiry

Judgment

ROSY AND ANR. A
v.
STATE OF KERALA AND ORS.

J&"lUARY 10, 2000

[KT. THOMAS AND M.B. SHAH, JJ.] B

Criminal Law .·

Criminal Procedure Code, 1973 :

Section 202(2) proviso-Holdi11g of inquiry-By Magistrat~ !11 cases
c
exclusively triable by Sessions Court-Nature of Discretionary or man-
datory-Case committed to Sessions Court without examining any wit-
nesl~bjection regarding non-examination of witnesses by the committal
court raised only at the lWge of final argumenfa· after rewrdmg of prosecution
evidence and statements of accused under s. 313-Validity of-Held : Per D
Thomas, !.; mandatory but omission by itself will not vitiate the proceedings
and if belated objection is taken it has to be decided according to S. 465-Per
Shah, !; discretionary but omission by itself will not vitiate trial unless it is
e1·tablished that prejudice is caused to the accu.1ed--Per curium; since the
objectin11 i~ takrn wher: t11e Ilia/ i.I' almost over the High Court e"ed in E
directing the Afagfatratr! tn conduct a fresh enquiry and thereafter commit the
case to the Sessions Court-Case remanded to the Sessions Court with the
direction to complete the hearing and dfapose of the case on merits-Kera/a
Abkari Act-lnterpretation of Statutes.

Section 202(2j proviso-Nature of- Mandatory or discretionary--Legis- F
lative intent-Detennination of--<.-'riteria fo,._f{eld : Per Thomas, J.; mere
placement of the proviso belows. 202(2) and not belows. 200 is not the only
criterion for discerning the legislative inte11t-lndications can be gathered from
other connected provisions for taking a contrary vieu-{n view of Ss. 204 and
208 and 4lst Report of the Law Commission S. 202(2) proviso is man- G
datory--41st Report of the Law Commis.1ion.

Section 207:--Nature of inquiry unde~Standard to be adopted by
Magistrate-Held : Per Shah, J; is of a limited natur~-The standard to be
adopted by the Magistrate in scrutinising the evidence not the same as that
adopted for framing of charge. H
107
108 SUPREME COURT REPORTS 12cco11 s.c.R.
A Section 208-Furnishing of documents-To the accused-Held : Per
Thomas, J; it is obligatory for the Magistrate to supply the documents to the
accused free of cost.

Words and Phrases :

B "Shall fumish''-Meaning of-In the contest of S. 208 of the ()iminal
Procedure Code, 1973.

The Excise Inspector filed a complaint before the Judicial
Magistrate under Sections 56 and 57-A of the Kerala Abkari Act against
C the appellants. As the offences were exclusively triable by the Cuurt of
Sessions, the Magistrate committed the case to the Court of Sessions
without examining any witnesse~ although ten persons were named in the
list of witnesses. The appellants-accused did not raise any objection that
the order of committal was wrong due to non-examination of any witness
in the committal court either at the time of commencement of proceedings
D before the Session Court or when charges were framed by the Sessions
Court or even thereafter.

After framing the charge, trial was commenced and prosecution
examined witnesses and thereafter the accused were questioned under
E Section 313 of the Criminal Procedure Code, 1973. Thereafter, certain
witnesses were recalled and examined further statements of the accused
under Section 313 Cr.P.C. were recorded. Even at that stage the accused
did not raise any objection regurding non-examination of the witnesses in
the committal court. Hence, the Sessions Court passed over to the next
stage envisaged in Section 233 Cr.P.C. and directed the accused to enter
F upon his defence. The accused availed themselves of that opportunity and
examined four witnesses on the defence side. It was when arguments were
being heard that the accused raised the objections on the ground that
witnesses were not examined in the committal court as per proviso to
Section 202(2) Cr.P.C.
G The Sessions Judge made a reference to the High Court under
Section 395(2) Cr.P.C. The appellants challenged this reference order by
filing a revision before the High Court. The High Court directed the
Magistrate to conduct a fresh enquiry in terms of proviso to Section 202(2)
by examining all the witnesses and thereafter to commit the case to the
H Sessions Court.
ROSY v. STATH 109

In the appeal before this CPnrt it was contended on behalf of the A
accused persons that proviso to Section 202(2) Cr.P.C. was mandatory and
as that was not complied with by the Magistrate, the accused ought to have
been discharged and there should not have been any direction to face
enquiry under Section 202 Cr.P.C ..

Allowing the appeal, this Court B

(Per Shah, J.)

HELD : 1. Under Section 200 read with Section 202 of the Criminal
Procedure Code, 1973 it is only at the discretion of the Magistrate to decide C
whether to hold an inquiry or not before issue of process to the accused.
Therefore, the question of complying with the proviso to Section 202(2)
Cr.P.C. would arise only in cases where the Magistrate before taking
cognizance of the case decides to hold the inquiry and secondly in such
inquiry by him, if he decides to take evidence of witnesses 011 oath. But the
object and purpose of holding inquiry or investigation under Section 202 D
is to find out whether there is sufficient ground for proceeding against the
accused or not and that holding of inquiry or investigation is not an
indispensable course before issue of process against the accused or db-
missal of the complaint. It is an enabling provision to form an opinion as
to whether or not process should be issued and to remove from his mind E
any hesitation that be may have felt upon the mere perusal of the com-
plaint and the consideration of the complainant's evidence 011 oath.
[114-D-E]
Ranjit Singh v. State PEPSU (now Punjab), AIR (1959) SC 843, relied
on. F
2.1. Further, it is settled law that the inquiry under Section 202 is of
a limited nature. Firstly, to find out whether there is prim a facie case in
issuing process against the person accused of the offence in the complaint
and secondly, to prevent the issue of process in the complaint which is
either false or vexatious or intended only to harass such a person. At that G
stage, the evidence is not to be meticulously appreciated, as the limited
purpose being of finding out "whether or not there is sufficient ground for
proceeding against the accused". The standard to be adopted by the
Magistrate in scrutinising the evidence is also not the same as the one,
which is to be kept in view at the stage of framing charges. At the stage of H
110 SUPRhMr. COU!C REPORTS [20COJ l S.C.R.
A inquiry under Section 202 Cr.P.C. accused has no right to intervene and
that it is the duty of the ~agistrate while making an enquiry to elicit all
facts not merely with a view to protect the interests of an absent accused
person, but also with a view to bring to book a person or persons against
whom grave allegations are made. (120-B·Dl

B Chandra Deu Singh v. Prakash 01andra Bose, [1964] 1 SCR 639;
Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker, [1961] l SCR 1;
Pramatha Nath Taluqdar v. Saruj Ran/an Sarkar, [1962] Supp. 2 SCR 297;
Ninnaljit Singh Houn v. State of West Bengal, [1973] 2 SCC 753; Mohinder
Singh v. Gu/want Siw;h, [1992] 2 SCC 213 and Kewal Krishun v. Suraj Bhan,
C [1980] Supp. SCC 499, relied on.

2.2. The High Court erred in holding that there was breach of man-
datory provisions of the proviso to Section 202(2) Cr.P.C. and the order of
committal is vitiated and, therefore, requires to be set aside. The High
Court failed to consider proviso to Section 200, particularly proviso (a) to
D the said Section and abo the fact that inquiry under Section 202 is discre-
tionary for deciding whether to issue process (under Section 204) or to
dismiss the complaint (under Section 203). Under Section 200, on receipt
of the complaint, Magistrate can take cognizance and issue process to the
accused. If the case is exclusively triable by the Sessions Court, he is
required to commit the case tu the Court of Sessions [ 121-E-FJ
E
3.J. However, in cases where enquiry is held, failure tu comply with
the statutory direction to examine all the witnesses would not vitiate further
proceeding in all cases for the reason that in view of Section 465 Cr.P.C. it
would also depend upon the facts of each case depending upon the
p prejudice caused to the accused by non-compliance of the said proviso
(Section 465). [123-CI

3.2. But a person complaining of such irregularity should raise ob·
jection at the earlier stage and be should point out how prejudice is caused
or is likely to be caused by not following the proviso. If he fails to raise such
G objection at the earlier stage, he is precluded from raising such objection
later. [126-E]

M.Ci. Pillai v. T Pillai, (1983) Crl.L.J. 917 (Mad.), approved.

Moideenkutcy Haji v. Kunhikuya, ( 1987, I KLT 6U (Ker.; (PB) and
H Sulaiman v. Eachara Wanier, (1978) KLT 424 (Ker.), referred to.
ROSY v. S"IATE 111

4.1. It is no doubt true that by the use of the words 'shall', it appears A
that language used in the proviso to Section 202(2) is itself a discretionary
one · giving option to examine or not to examine witnesses on oath. Hence,
proviso to Section 202(2) is required to be read accordingly. Normally, the
procedure prescribed therein should be followed, but non· observance of
the said procedure may not vitiate further proceedings in all cases. In a
case where a complaint is filed, not by the public servant, and where the B
offence is exclusively triable by the Court of Sessions, the Magistrate
should follow the proviso to Section 202(2) and call upon the complainant
to produce all his witnesses and examine them on oath. However, in a case
where complaint is filed by a public servant after holding inquiry and
recording the statements, question of recording of each evidence may not C
arise. Hence, compliance of proviso by the Magistrate in all Sessions triable
cases is not a must and would not vitiate the further trial unless prejudice
caused to the accused is established. [123-G-H, 124·A·D)

4.2. Further, the aforesaid interpretation would be in consonance
with Chapter XXXV of the Cr.P.C., which deals with irregularities in the D
proceedings, which may or may not vitiate the proceeding. Sections 460 and
461 provide which irregularities would or not vitiate the proceedings. In
these Sections, there is no mention of Section 202. Moreover, during inquiry
under Section 202 when the Magistrate examines the witnesses on oath, as
far as possible proviso to Section 202 is to be complied with but the man-
E
date is not absolute in view of provisions of Section 465 Cr.P.C.
Ll24-J<:-H, 125-AJ
4.3. The part of holding inquiry is a procedural one and, therefore,
even what is regarded, as mandatory traditionally may, perhaps have to be
moderated into wholesome directions to be complied with in time or in
extended time. [125-B] F

State of Punjab v. Sham/al Murari, [1976] 1 SCC 719, relied on.

5. The High Court failed to notice the provisions of Section 465
Cr.P.C. as the objection with regard to such error, omission or irregularity
in the committal order was required to be raised at the earlier stage. After G
committal order in the case, the trial was almost over as evidence of the
prosecution witnesses was recorded by the Sessions Court, the statements
of the accused under Section 313 Cr.P.C. were also recorded, thereafter
witnesses were recalled and examined, further statements were recorded
and only at the stage of arguments the contention with regard to the H
112 SUPRflvlE COliRI J{hPORTS [200U[ I S.C.R.
A so-called irregularity was raised, whicb is upheld by the Sessions Court
and the High Court. In the background of these facts, it has to be held that
holding of fresh inquiry under Section 202 would be totally um1ecessary in
the present case and thereaUer to commit the case again to the Sessions ...-
Court. The Sessions Court is directed to complete hearing of arguments
and dispose of the case on merits in accordance with law. [ 126-(;-H, 127-AJ
B
(Per Thomas, J. concurring with the conclusions but disagreeing on
the question whether proviso to Section 202 is mandatory or directory) :

I. The questim1 of examining all witnesses would arbe only when the
C Magistrate opts tu hold an inquiry, otherwise not. This appears, prima
facie, from Section 202(2) of the Criminal Procedure Code, 1973. However,
the question is when the trial is exclushely triable by the Court of Sessions
whether the proviso to Section 202(2) b mandatory or discntionary. The
answer would not have been dillicult if one goes by the placement of the said
proviso alone, as it can then be said that inquiry is not a must. If the said
D proviso were Jllaccd in Section 200 of the Code even a doubt that the
legislative idea is to have all witnesses examined by the ~lagbtrate when
the o!Ience complained of is triable exclusively by the Court of Sessions
would have been db placed. Nonetheless the placement of the proviso is not
the only criteria in dbcerning the legislafoe intent. Indications can be
E gathered from other t'Oimeded provbions for tailing a contrary "iew.
113 l -I·, !-I, 132-Al

2. Three categories of documents are mentioned in Section 208
Cr.P.C. the copies of which the Magistrate, who proceeds from the stage
in Section 204, has to supply to the accm.ed free of cost (in a complaint
F case involving an offence triable exclusively by a r ourt of Sessions l. As the
words used here art: "shall furnish", it is almost a compelling duty on the
Magistrate to supply the said documents to the accused. It is not possible
for the Magistrate to com ply with the provisions of Session 208 in a case
where he failed to examine the witnesses before issuing process to the
accused. [132-H, 133-A-B]
G
3.1. Section 209 Cr.P.C. enjoins on the ~Iagistrate to commit the case
to the Court of Sessions after complying with the provbions in Section 208 ·
of the Code. In the Sessions Court a Publk Prosecutor alone can conduct
prosecution, whether the case was instituted rm police report or on com-
H plaint. Section 226 requires the Public Prosecutor to open the case and
KUSY v. STA TF 113

state by what evidence he proposes to prove the guilt of the accused. A
[133-G, 134-D-E]
3.2. If case instituted on complaint is committed to the Court of
Sessions without complying with the requirements of Section 208(i) of the
Code it would not be possible for the public prosecutor to know in advance
what evidence he can adduce to prove the guilt of the accused. If no inquiry B
under Section 202 is to be conducted a Magistrate who decides to proceed
only on the averments contained in the complaint liled by a public servant
(who is not a witness to the core allegation) and such a case is committed
to the Court of Sessions, its inevitabfo consequence would be that the
Sessions Judge has to axe down the case at the stage of Section 226 itself.
[134-C-D] c
4.1. This Court had already taken the stand that it would be ad-
vantageous to look into the deliberations made in the legislature, the Ob-
jects and Reasons for the enactment including the recommendations of the
Law Commission for the purpose of discerning the legislative idea behind
inclusion of any particular provision. [ 135-E] D

Santa Singh v. State of Punjab, [1977] 1 SCR 229 and Mithile~h
Kumari v. Prem Behari Khare, [1989] 2 SCC 95, relied on.

4.2. Regarding Section 202 of the Code, Parliament has taken the cue
E
from the Law Commission Recommendation and introduced all the
parameters in accordance with such recommendations. That is yet another
factor, which lends support to the interpretations given above. [135-H]

5.1. Thus there is no doubt that the proviso to Section 202 of the Code
is nut merely incorporated to confer a discretion on the Magistrate, but a F
compelling duty on him tu perform in such cases. The Magistrate in such
sltuation is not obliged to examine witnesses who would not be produced
by the complainant when asked to produce such witnesses. [136-B)

5.2. If the Magistrate omits tu cum ply with the above requirement
that would not, by itself vitiate the proceedings. If no objection is taken at G
the earlier stage regarding such omission the court can consider how far
such omission would have led to miscarriage of justice, when snch objec-
tion is taken at a lat~r stage. A decision on such belated objection can be
taken by bearing in mind the principles adumbrated in Section 465 of the
Cude. [136-C-D] H
114 SUPREME COURT REPORTS [2000] I S.C.R.
A 6. In the present case, the stage had passed long ago for the accused
or the prosecution to have raised objections that the commi°ttal order was
vitiated due to non-examination of the witnesses before the Magistrate
issued process to the accused. Even if there was any such omission before
process was issued the accused cannot raise it as an objection for the first
time at the fag end of a long drawn trial in the Sessions Court is view of
B Section 465 of the Code. [129-B]

7.1. When the accused have chosen not to raise objection on the
premise of omission to examine witnesses before process was issued by the
Magistrate, it must be taken that they had no grievance that such omission
C had occasioned failure of justice. Even if they had taken such objection
after committal of the case to the Sessions Court there was no need to turn
the switchboard backwards as there is no scope for believing that such
omission had occasioned failure of justice. This is because no evidence of
any witness would be used in the trial court unless such witness was ex·
amined in the trial court and the accused is afforded reasonable oppor-
D tunity to cross-examine him. (130-C-D]

Kalpanath Rai v. State, [1997) 8 SCC 732, relied on.

Moideenkutty Haji v. Kunhikoya, (1987) 1 KLT 635 and State of Kera/a
v. Balakrishnan, (1991) 2 KLT 323, referred to.
E
7.2. The impugned order passed by the High Court is set aside and
the Sessions Judge is directed to dispose of the case on merits.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 18-19 of 2000.
F From the Judgment and Order dated 7.6.99 of the Kerala High Court
in Crl.R. No. 2 of 1999,

Verghese Kalliath and M.T. George for the Appellants.

G. Prakash for Respondent No. 1.
G
The Judgments of the Court wt:re delivered by

SHAH, J. Leave granted

These appeals by special leave are filed against the common judg-
H ment dated 7.6.1999 passed by the High Court of Kerala in Cr!. Reference
ROSY v. STATF [SHAH, l: 115

... No. 2 ol 1999 and Criminal R.P. No. Hm of 1998. A Division Bench of A
the High Court quashed the committal order in Sessions Case 'lju. 39 of
1990 pending before the Sessions Court, Trissur and dirt:cted the
Magistrate tu conduct a frt:sh enquiry in terms of proviso to Section 202
(2) Criminal Prucecdun: Code (for Short "the Cod.:;) and thaeafter to
pass an order of committal tu the Sessions Court.
B
The criminal proceedings wherein it is alkged that methyl alcohol
was present in the arrack, tht: sampk of which was taken by an Excise
Inspector on 26.2.1988 and which arc p.:nding since November, 1989 are
being unduly dclay..:d on one account or the other including a rdcrence
made by the Sessions Judge and tht directions now issued by the High
Court. The Excise Inspector after completing tht: the enquiry filed a
c
complaint before a Judicial Magistrate, Trissur on 16.11.1989 for offences
punishable under Sections 57-A and 56(b) of the Kerala Abkari Act (for
short 'the Act'). As the offences are exclusively triable by the court of
Sessions, the k:arncd Magistrate by his order dated 26.SJ 990 committ.:d
the case tu the court of Sessions, Trissur. After framing the charge, trial D
was commenced and prosecution examined witnesses and thereafter the
accused were questioned under Section 313 of the Code. Public Prosecutor
then filed an applil.:ation for recalling PWs 4 and 5, and they were recalled
and examined; further statements of the accused under Section 313 of the
Code were recorded. Thereafter accused examined PWs 1 to 4 and it was
during the course of arguments that the counsd for the accused raised the E
contention that the Magistrate errt:d in not following the procedure
prescribed in proviso to Section 202 (2) of the Code before plll>sing
committal order dated 26.5.1990. After hearing both the sides, the learned
Sessions Judge arrived at the conclusion that there was breach of man-
datory provisions and consequently prt:judice was caused tu the accused.
F
He found it difficult to decide as to which further course was required to
be followed and, therefore, he made a reference to the High Court under
Section 395(2) of the Code.

That case was numbered as Crl. Reference No. 2 of 1999. The
accused fikd Crl. R.P. ~o. 1035 of 1998 against the reference order. Both G
matters w.:re disposed of by the High Court as per the impugned judgment.
The High Court arrived at the conclusion that proviso to Section 202 (2)
is mandatory, thcr .!fore, non- examination of the witnesses at that stage
__/ would rewlt in substantial failure of :ustm: and hence tht urdtr of com-
mittal was vitiated. The Magistrate was din:ch:d to conduct a fresh enquiry H
ll6 SUPREME COURT REPORTS [2000] I S.C.R.
A in terms of proviso tu Section 202 (2) by examining all the witnesses <ind
thereafter to commit the case to the Sessions Court. That order ts under
challenge now befon: this Court.

The learned counsel fur the appdlants submitted that proviso tu sub-
section (2) of Section 202 Cr.P.C. is mandatory and as that was not
B complied with by the ~Iagistrate, accused ought to haw been acquitted and
the Court ought to have directed to drop the proceedings. It is contended
that a post trial enquiry by the committing Magistrate after framing of
charges by the Sessim1s Judge does not serve the purpose and object as
contemplated under Section 202 Cr.P.C. Hence, accused ought to have
C been discharged and there should not have been any direction to face a
farce of fresh enquiry under Section 202 Cr.P.C.

Learned Counsd for the State fairly agreed with the submission of
the learned counsel for the appellants that there was no necessity for
holding a fresh enquiry under Section 202 Cr.P.C. and a direction to
D commit the case to the Sessions Court in view of the fact that Sessions trial
was practically already over. The High Court ought to have directed the
Sessions Court to hear the arguments and to pass the judgment according
to law. According to him the scheme of Section 202 (2) Cr.P.C. clearly
reveals that it is the discn:tion of the Magistrate whether or not to hold
E the enquiry before committing the case to the Sessions Court.

We agree with the submission of learned counsel for the appellants
that the order passed by the High Court to hold fresh enquiry under
Section 202 (2) of the Code was unnecessary because (1) under Section
200 read with Section 202 Cr.P.C., it is only at the discretion of Magistrate
F to decide whether to hold an inquiry or not before issue of process to the
accused; (2) the High Court as well as the Sessions Court failed to notice
the provisions in Section 465 of the Code while considering the contention
raised by the defence counsel.

G For appreciating the contention raised by the learned counsel, we
would first refer to Sections 200 and 202 Cr.P.C., which are as under :

"200. Examination of complaint - A Magistrate taking cog-
nizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance
H of such examination shall be reduced to writing and shall be signed
ROSYv STATE[SI-IAH,J.; 117

by the complainant a11d the witnesses, and also by the Magistrate: A

Provided that when the complaint is made in writing, the
Magistrate need not examine the complainant and the witnesses -

(a) if a public servant acting or pwpo1ting to act in the discharge
of his official duties or a Court has made the complaint; or B
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192 :

Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the com- C
plainant and the witnesses, the latter Magistrate need not re-
examine them.

202. Postponement of issue of process - (1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised to
take cognizance or which has been made over to him under section D
192, may, if he thinks fit, postpone the issue of process against the
accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other person
as he thinks fit, for the purpose of deciding whether or not there
is sufficient ground for proceeding :
E
Provided that no such direction for investigation shall be
made, -

(a) where it appears to the Magistrate that the offence com-
plained of is triable exclusively by the Court of Session; or
F
(b) where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have been
examim:d on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if G
he thinks fit, take evidence of witness on oath :

Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
examine them on oath. H
118 SUPREME COURT REPORTS [2000] 1 S.C.R.
A (3) If an investigation under sub-section (1) is made by a person
not being a police officer, he shall have for that investigation all
the powers conferred by this Cude on an officer in charge of a
police station except the power to arrest without warrant."'

(Emphasis added)
B
The aforesaid Section 200 requires a Magistrate taking cognizance
of an offence on a complaint to examine upon oath the complainant and
the witnesses present, if any. The proviso to the said section carves out an
exception in cases where a complaint is filed by a public servant acting or
C purporting to act in the discharge of his official duties or in cases where
the Court has made the complaint. ln such case complainant and witnesses
need not be examined. ln such cases, if he is satisfied that there is sufficient
ground for proceeding, he can straightway issue process. At this stage, the
Magistrate has thn:e options :

D (i) to issue process on the basis of complaint, if he 1s satisfied
that there is sufficit:nt ground for proceeding against the
accused (Sec. 204); or

(ii) to dismiss the complaint (Sec. 203); or
•
E (iii) to hold an enquiry -

(a) by himself, or

(b) by directing investigation by the Police Officer,

F (c) or by other person, for the purpose of deciding whether
or not there is sufficient ground for proceeding.

It is only if th.: Magistrate decides to hold the inquiry the proviso to
sub-section (2) of Si.:ction 202 would come into operation. If the offence is
triable exclusively by the court of Session&, the Magistrate himself has to
G hold the inquiry and no direction for investigation by police shall then be
made. Inquiry can be held for recording evidence on oath and if he thinks
fit. Sub- section (2) of Section 202 gives discretion to the Magistrate to
record evidence of witnesses on oath. To this discretionary power, the
proviso carves out an exception. lt provides that for the offence triable
H exclusively by the court of Session the Magistrate shall shall call upon the
ROS)' v. STATE [SHAH, J.] 119

complainant to produce all his witnesses and examine them on oath. Then A
the next stage after holding inquiry is passing of appropriak ordt:r of either
dismissal of the complaint or issue of process. That is provided under
Sections 203 and 204 of the Code. Hence, on receipt of the complaint, the
Magistrate by following the procedure prescribed under Section 200 may
issue process against the accused or dismiss the complaint. Section 203
B
specific lly provides that after considering the statement on oath, if any, of
the complainant and witnesses and the result of the inquiry or investigation,
if any, under Section 202, the Magistrate is of the opinion that there is no
sufficient ground for proceeding, he shall dismiss the complaint. For dis-
missal of complaint, he is required to briefly record his reasons for so
doing. In other cases, he has to issut: process i.e. either summons or c
warrants as the case may be as provided under Section 204. However, no
summons or warrant is to be issued against the accused until a list of the
prosecution witm:ssess has been filed. Therefore, the question of complying
with the proviso to sub-section (2) of Seetion 2C2 would arise only in cases
where the Magistrate before taking cognizance of the case decides to hulu D
the inquiry and secondly in such inquiry by him, if he decides tu take
evidence of witnesses on oath. But the object and purpose of holding
inquiry or invt:stigation under Section 202 is to find out whether there is
sufficient ground for proceeding against the accused or not and that
holding of inquiry or investigation is not an indispensable course befon: E
issue of process against the accused or dismissal of the cqmplaint. It is an
enabling provision to form an opinion as to whether or not process should
be issued and to remove from his mind any hesitation that he may have felt
upon the mere perusal of the complaint and the consideration of the
complainant's evidence on oath.
F
In a case, Ranjit Singh v. T71e State of Pepsu (now Punjab, AIR (1959)
SC 843, when: the Sub-Inspector uf Police was convicted under Section 193
IPC by First Class Magistrate, it was contended that the procedure adopted
by the Magistrate was erroneous because he did not hold an enquiry as
required under Sections 200 and 202 of the Code. This Court n<.:gatived G
the said contt:ntion and held thus :

"That cont.:ntion is equally untenable because under Section 200
proviso (aa) it is not m:cessary for a Magistrate when a complaint
is made by a Court to examine the complainant and m:ither Section H
120 SUPREME COUR !'REPORTS l2COOJ 1 S.C.R.
A 200 nor Section 202 requires a preliminary enquiry before the
Magistrate can assume jurisdiction to issue process against the
person complained against."' ··

Further, it is st:ttled :aw that the inquiry under Section 202 is of limited
B nature. Firstly, to find out whether there is prim a f acie case in issuing
process against the person accused of the offence in the complaint and
secondly, to prevent the issue of process in the complaint which is either
false or vexatious or intt:nded only to harass such a person. At that stage,
the evidrnce is not to be meticulously appreciated, as the limited purpose
being of finding out ·whether or not there is sufficient ground for proceed-
C ing against the accused''. The standard to be adopted by the Magistrate in
scrutinising the evidrnce is also not the same as the one which is to be kept
in view at the stage of framing charges. At the stage of inquiry under
Section 202 Cr.P.C. accused has no right to intervene and that it is the duty
of the Magistrate while making an enquiry to elicit all facts not merely
D with a view to protect the interests of an absent accused person, but also
with a view to bring to book a person or persons against whom grave
allegations are made. (Re : Chandra Dea Singh v. Prakash Chandra Bose
& Anr., (1964] 1 SCR 639, Vadilal Panchal v. Dattatraya Dulaji
Ghadigaonker, I1961] l SCR 1, Pramatha Nath Taluqdar v. Saroj Ranjan
Sarkar, 11962] Supp. 2 SCR 297, Nirmaljit Singh Hoon v. The State of West
E Bengal and Another, [1973] 3 SCC 753 andMohinder Singh v. Gu/want Singh
and Others, (1992) 2 SCC 213.

This Court in Kewal Krishan v. Suraj Bhan and Another, (1980) Supp.
sec 499, dealt with the case where instead of finding out prima facie case
F made out against the accused, the Magistrate passed an order by
meticulously appreciating the evidence in a case exclusively triable by a
Sessions Court, at tht: stage of Sections 203 and 204. The Court hdd that
the Magistrate committed an irregularity by exceeding his jurisdict10n and
observed thus :

G "At the stage of Sections 203 and 204, Criminal Procedure Code
in a case exclusively triable by the Court of Session, all that the
Magistrate has to do is to see "whether on a cursory perusal of the
complaint and the evidence recorded during the preliminarv jq-
quiry under Sections 200 and 202. Criminal Procedure Code, ttrere
H is prim a f acie evidence in support of the charge levelled against
ROSYv. STATE[SHAH.J.i 121

the accused. All that he has to st:e is whether or not then: is A
''sufficient ground for proceeding against the accused."

The Court further made it ckar thus :

"At this stage, the Magistrate is not to weigh the evidence
meticulomly as if he were the trial Court. The standard tu be B
adopted by the Magistrate in scrutinising the evidence is not the
same as the one which is to be kept in view at the stage of framing
charges. The standard of proof and judgment, which is to be
applied finally before finding the accused guilty or otherwise is not
exactly to be applied at the stage of framing charges. A fortiori, at C
the stage of Sections 202/204, if there is prima facie evidence in
support of the allegations in the complaint relating to a case
exclusively triable by the Court of Session, that will be a sufficient
ground for issuing process to the accused and committing them
for trial to the Court of Session."
D
In this view of the matter it is apparent that the High Court erred in
holding that there was breach of mandatory provisions of the proviso to
Section 202 (2) of the Code and the order of committal is vitiakd and,
therefore, requir ..;s to bt: '"t aside. The High Court faikd to curn,ider
proviso to St:ction 200, particularly proviso (a) tu the said Section and also E
tht: fact that inquiry under Section 202 is di,crdionary for dc:ciding whdht:r
to issue prnct:ss (under Section 204) or to dismi" the complaint ( undt:r
Section 203). Under Section 200, on receipt of the complaint, Magistrate
can take cognizance and issue process to the accused. If the case is
exclusivdy triable by the Sessions Court, he is rt:quired to commit the case
F
to tht: court of Sessions.

However, the learned counsd fur the appellants vehemently sub-
mitted that in a case of complaint where the case is exclusively triable by
the court of Session, the Magistrate must follow the mandate of proviso to
sub-section (2) and examine the complainant and his witnesses on oath G
before committing the case tu Sessions Court as this would give protection
to the accused because he would he in a position to know the case against
him and the evid;;;nce rdi;;;d upon by the complainant in support of his case.
He relied upon a Full Bench decision of the Kcrala High Court in
Moideenkutty Haji & Ors. v. Kunhikoya & Ors., (1987) 1 K.L.T. 635. The H
122 SUPREME C'.OURT REPORTS [WOO[ l S.C.R.
A question involved in that case was whether it is mandatory that a
Magistrate, before issuing process to the accused on a complaint disclosing
an offence which is exclusively triable by a Court of Session, shall call upon
the complainant to produce all his witnesses and examine them on oath. A
Division Bench of the Court in Suluimun v. Eachura Wanier, (1978) KLT
B 424 had takt:n the view that it is not mandatory since th1:: duty to conduct
an enquiry under S. 202 (1) of the Code of Criminal Procedure itself is
only discretionary. The correctness of that view was doubted and hence the
question as wdl as the cases had been referred to the Full Bench. The
Court referred to various decisions ot Kerala High Court wherein a view
C was taken to the effect that an inquiry under Section 202 ( 1) is desirable
in complaint cast: which involves offonce t:xclusively triable by the court of
Sessions. It is only discretionary and the obligation to comply with the
proviso to Section 202 will arise only when Magistrate exercises his discre-
tion to hold an inquiry. The Court also referred to other decisions of
various High Courts where the same view was taken and also decisions
D where the contrary view was taken. The Full Bench referred to objects and
purposes recommended by the Law Commission for the m:w provll.ion of
Section 202 in the Act and finally held that in a complaint case the inquiry
under Section 202 by the Magistrate into the truth of the complaint is made
mandatory and in a way it is intended to take the place of inwstigation by
E the police. This ~afeguard must be to take the place of the preliminary
inquiry proceedings provid~d in the old Code and that sub-section (2)
together with tht: proviso must ht: rt:ad a~ a proviso to Section 202. When
it is so read, the ob.iects underlying in the scheme of Chapter XV can be
bt:tter served.
F
The Madras High Court in M.G. Pillai v. T. Pillui, (198:'\) Cr!. L.J.
917 has held that order of committal passed under Section 209 by the
Magistrate taking cognizance of an offence under St:ction 2CO and there-
after straightway i;ssuing process under Section 204 is a valid committal
order and that cannot be challengt:d as illegal on the ground that
G Magistrate has not availed himself of an inquiry under Section 202. How-
ever, the Court further held that onct: tht: Magistrate decides to follow
Section 202, which is an enabling provision, the proviso to Section 202 (2)
would come into operation, which makes it obligatory for Magistrate to call
upon the complainant to produce all his witnesses and examim: them on
H oath; the failurt: on his part to comp!)' with the statutory direction given
ROSYv. S'lATE(SHAfi,J.] 123

under the said proviso would vitiate the further proceedings taken by him. A

We agree with the conclusion of the Madras High Court to the cfft:ct
that Section 202 is an enabling provision and it is a direction of the
Magistrate depending upon the facts of each case, whethcr to issue process
straightway or to hold the enquiry. However, in case when: enquiry is held,
failure to comply with the statutory direction to examine all the witnesses
B
would not vitiate further proceeding in all cast:s for the reasons that (a) in
a complaint filed by a Public servant acting or purporting to act in dis-
charge of his official dutit:s, the question of holding inquiry may not arise,
(b) whether to hold inquiry or not is discretionary jurisdiction of the
Magistrate, (c) even if he decided to hold inquiry it is his further discrttion c
to examine the witnesses on oath.. lf he decides to examine witnesses on
oath in a case triable exclusively by tht: court of Session, he shall call upon
the complainant to produce all his witnesses and examin1C them on oath,
(d) it would also depend upon facts of each case depending upon the
prejudice caused to the accused by nun-compliance of the proviso (Sec. D
465), and (e) that the objection with rngard to non.. compliance of proviso
should be taken at the earlier stage when the charge is framed by the
Sessions Court.

At initial stage, if objection is raised and it i' found by the Sessions
Court that by nun-holding uf inquiry, prejudice is caused tu the au used, E
he may dirnct tht: Magistrate' to foltuw the proc.edurn prescribed under the
proviso. lt is no doubt true that by the ust: of the words "shall", it appears
that language ust:d in the proviso is of mandatory nature. At the same time,
it is a procedural law and it is to be read in context of Section 2CQ which
enables the Magistratt: to issue process without holding any inquiry and F
that inquiry under St:ction 202 is itsdf discrt:tionary one - giving option to
>
examine or not to examine witnesses. Hence, proviso to the said sub-section
is required to be read accordingly though couched in mandatory term by
)
using tht: word 'shall'. Normally, the procedure prt:scribed therein should
be followed, but non-observance of the said procedure may not vitiate
further proceedings in all cases. ln a case where a complaint is filed, not G
by the public 1iervant, and where the offence is exclusively triable by the
court of Session the Magistrate should follow the proviso to sub-section (2)
of Section 202 and call upon the complainant to produce all his witnesses
and t:xamine them on oath. This would be in consonance with tht: provision
of Section 208 which inter alia provides for supply of copy of statements H
124 SUPREME CUU RT REPORTS (2000) 1 S.C.R.
A anrl documents to accused. This would also facilitate the Sessions Court in
framing the charge or discharging the accused. In the Sessions triable case,
under Section 226 the prosecution has to open its case by describing the
charge brought against the accused and stating by what evidence it
proposes to prove the guilt of the dccused. On such submission, the
B Sessions Court is required to considtr the record of the case and the
documents submitted therewith and after hearing tht: submissions of the
accused and prosecution in this behalf, to decide whether there is sufficient
ground or not for proceeding against the accused. l.Jpon such considera-
tion, if the court finds that there is no sufficient ground for proceeding
against the accused, he shall be discharged as provided under s. 227. In
C case, where ther.: is sufficient ground, court is requirt:d to framt: tht: charge
as provided under s. 228. Hence, for the purpose of framing the charge
also the rt:cording of such evidence i~ necessary. It also facilitatt:s the
accused to know allegation made against him as well as evidence in support
thereof. However, in a case where complaint is filed by a public servant
D after holding inquiry and recording the statements, question of recording
of such evidence may not arise. Hence, compliance of proviso by the
Magistrate in all Sessions triable cases is not a must and would not vitiate
the further trial unless prejudice caused to the accused is established.

Further, the aforesaid interpretation would he in consonance with
E Chapter XXXV of the Cr.P.C., which deals with irrt:gu!arities in the
proceedings, which may or may not vitiate the proceedings. Sections 460
and 461 provide which irregularities would or would not vitiate the
proceedings. ln these sections, there in no mention of Section 202. For our
purpose referenc1.: to Section 465 would suffice, which inter alia specifically
F provides that irrtgularity in the complaint, summons, warrant, order or
other proceedings before or during trial or in any inquiry shall not be a
ground for reversing order passed by the competent Court, unless in the
opinion of that Court a failure of justice has in fact been occassioned
thereby. Sub-section (2) further provides that in determining whether any
irregularity in proceeding has occasioned a failure of justice, the Court
G shall have regard to the fact whether the objection could and should have
been raised at an .:arlier stage in the proceedings. Hence, the statute does
not expressly provide for nullification of the order as a consequence of
non-compliance of proviso to sub-section (2) of Section 202, but provides
that unless prejudice is caused, the order is not to be set asidt:. This would
H mean that during inquiry under Section 202 when Magistrate examines the
ROSY v. STATr. [SHAH, J.] 125
witnesses on oat!!., as far as possible the proviso is to be complied with but A
the mandate is not absolute.

This is also to be considered with the fact that this part of holding
inquiry is procedural one and for that purpose, it would be proper to refer
to the observation made by this Court in The State of Punjab and Another
v. Sham/al Murari and Another, [1976] 1 SCC 719 : B

''We must always remember that processual law is not to be a
tyrant but a servant, not an obstruction but an aid to justice. It has
been wisdy observed that procedural prescriptions are the hand-
maid and not the mistress, a lubricant, not a resistant in the C
administration of justice. Where the non- compliance, tho' proce-
dural, will thwart fair hearing or prejudice doing of justice to
parties, the rule is mandatory. But, grammar apart, if the breach
can be corrected without injury to a just disposal of the case, we
should not enthrone a regulatory requirement into a dominant D
desideratum. After all, courts are to do justice, not to wreck this
end product on technicalities. Viewed in this perspective, even
what is regarded as mandatory traditionally may, perhaps, have to
be moderated into wholesome directions to be complied within
time or in extended time."
E
Hence, what emerges from the above discussion is :

I. (a) Under Section 200 Magistrate has jurisdiction to take
cognizance of an offence on the complaint after examining
upon oath the complainant and the witnesses present;
F
(b) When the complaint is made in writing by a public servant
acting or purporting to act in discharge of his official duties,
the Magistrate need not examine the complainant and the
witnesses.

c In sueh case Court may ·issue process or d.1s1D1ss
() · the G
complaint.

II. (a) The Magistrate instead of following the procedure stated
above may, if he thinks fit, postpone the issue of process and
hold inquiry for the purpose of deciding whether or not there I-I
126 SUPREME CO CRT REPORTS [2000] 1 S.C.R.
A is sufficient ground for proceeding against the person ac-
cus..:d. Such inquiry can be hdd by him or by the police officer
or by other person authorised by him.

(b) However, where it appears to the Magistrate that the
offc nee complained of is triable txclusivdy by the court of
B Ses>ions, the direction of inwstigation by the police officer is
not permissible and he is required to hold inquiry by himself.
Dunng that inquiry he may decide to i::xamim: the witnesses
on oath. At that stage, proviso further gives mandatory direc-
tion' that he shall call upon the complainant to produce all
c his witnesses and examine them on oath. The reason obviously
is th<1t in a private complaint, which is required to be com-
mitted to the Sessions Court for trial, it would safoguard the
inter ..:st of the accused and ht: would not bt: takrn by surprise
at the time of trial and it would n:wal the ver,ion of the
witm:sses whose list is required to be filed by complainant
D undcr Scction 204 (2) bdore issuance of the proccss.

(c) The irregularity or non-compliance thereof would not
vitiate the further proceeding in all cases. A person complain-
ing of such irregularity should raise obj.;ction at the earlit:st
E stagt and he -,hould point out how pn:judici.: i~ caused or is
li~dy to be caused by not fuiluwing the proviso. if he fails to
raise such objection at the earliest stage, he is precluded from
raising such objection later.

F Thc High Court failed to notice the provisions of Scction 465 of thc
Code as the objectinn with regard to such error, omission or irregularity
in the committal order was required to be raised at the earliest stage. After
committal order in tht: case, the trial was almost over as evidt:nce of tht:
prosecution :witnesses was recorded by the sessions court, statements of the
accused under St:ction 313 of the Code were also recorded, thereafter
G witnesses wert: recalled and examined, furtht:r statements were recorded
and only at the stage of arguments the contention with regard to the
so-called irregularity was raised, which is upheld by the Sessions Court and
the High Court. In t'ie background of these facts, we hold that holding 9f
fresh inquiry under S..:ction 202 would be totally unnecessary in the present
H case and thereafter to commit the case again to the Sessions Court.
RUSYv. STATE !THOMAS,J.] 127

Hence, the appeals arc allowed, the impugned order passed by the A
High Court is set aside and the reference made by the Sessions Judge is
answered in the afore -mentioned terms. The Sessions Court is directed to
complete hearing of arguments and dispose of the case on merits in
accordance with law.
B
THOMAS, J. I have read the draft judgment prepared by my
learned brother M.B. Shah, J. and I respectfully agree with the conclusion
that the judgment of the High Court >hou!d be intcrfored with and the
Sessions Judge he direckd to proceed from where he stopped. But I haw
a different approach regarding the interpretation of Section 202 of the
Code of Criminal Procedure (for short 'the Code'). Interpretation of the c
said provision is of great practical importance in inquiries and trials. Hence
I deem it appropriate to express my views on the interpretation of the
proviso to Section 202(2) of the Code.

The facts of this case reflect the gla;ing example of how failun: to D
raise objection at the appropriate stage could, procrastinate criminal
proceedings unduly to unpalatable levels. A!most eleven years have passed
since the alleged offence was committed (being in possession of arrack
containing methyl alcohol) and except the first two yeas which the Excise
officers took for compkting the formalities to launch the prosecution, the
E
re't of the years rolled on dm: lo th..: dday in court procedures. If the
impugned order of the High <.. 'ourt is to sustain the aln:ady protected
criminal proceedings which reached almost final stage in the trial court
alone would stand relegated to square one for commencing all the kgal
'kps ovi.:r again and if the progress thereafter is at the sami.: pacto quite
possibly anothtor decadt: would be consumed for the trial to n:ach where F
it has already rtoached. Is it so inevitable a course to be adopted?

It was on 16.11.1990 that om: Excise Inspt:ctor, in his capacity as
such, filed the complaint against the appellants and a few others before a
Judicial Magistrate of Second Class allt:ging certain offences which were G
exclusively triable by the Court of Session and on 26.5.1990 the said
Magistrate, without examining any witness, committed the case to the
Sessions Court. In the list of witnesses apptondt:d to the complaint names
of ten persons were included. For almost six years the case rt:maincd in
limbo in the sessions court presumably due to ordt:rs passt:d by tht: High H
128 SUPREME COURT REPORTS (2000) 1 S.C.R.
A Court. Howt;ver, by the end of 1993 the decks Wtre cleared for the Sessions
Court to commt:nce proceedings. Neither then nor when charges were
framed by tht: Sessions Court on 2.9.1996 nor even thereaftt:r did any of
the accused raise any objection that the order of committal was wrong due
to non-examination of any witness in the committal court.
B
It is to be further pointed out that during progress of the trial in the
Sessions Court, the accused preferred a revision in the High Court chal-
lenging an ordtr passed by the trial court on 15.3.1997 as per which the
trial court granted permission to re-open the evidence. Even then the
accused did not raise any objection regarding non-examination of the
C witnesses in the committal court. The High Court dismissed the aforesaid
revision on 27.L 1998. Some witnesses were recallt;d by the Sessions Court
for further examination and on completion of the prosecution evidence,
after such prolonged proceedings, the Sessions Judge would have heard
argurnentF as envisaged in Section 232 of the Code of Criminal Procedure
D (For short the Code). It is apparent that the accused did not raise any
objection t:wn at that stage regarding the invalidity of committal order on
account of non-examination of witnesses in committal court Hence, the
Sessions Court passed over to the next stage envisaged in Section 230 of
the Code and dir~cted the accused to enter upon his ddence. The accused
E availed themsdw, of that opportunity and examined four witnesses on the
defence side. lt was when arguments wen: being lieard the defonce counsel
raised the objectiuns on the ground tha! witnesses were not examined in
the committal court.

F It seems that the Sessions Judge felt constrained by the two decisions
of the Kerala High Court, one n:ndtred by a Fuil Btnch in lvfoideenkutty
Haji and Others v. Kunhikoya and Others, [ 1987) l Kera!a Law Times 635
and other rendered by a Division Bench in State of Kera/a v. Balakrishnan,
(1991) 2 Kerala Liw Times 323. Instead of succumbing to the arguments
of the defence that the case should end in complete acquittal on account
G of non-examination of witnesses in the committal court, the Sessions Judge
had chosen to make a reference to the High Court as providt:d in Section
395(2) of the Code. The present appellants were dis-satisfied with the
aforesaid reference order and hence they chal!engt:d that order by filing a
revision before tht High Court. By the impugned order a Division Bt:nch
H of the High Court disposed of the aforementioned reference and the
ROSY v. STATE !THOMAS. J.] 129

revision petition. A
The first point is that the stage had passed long ago for the accused
or the prosecution to have raised objections that the committal order was
vitiated due to non-examination of witnt:sses before the Magistrate issued
process to the accused. Even if there was any such omission before process
was issued the accused cannot raise it as an objection for the first time at B
the fag end of a long drawn trial in the Sessions Court. Section 465 of the
Code is extracted below :

"465. Finding or sentence when reversible by reason of e"or, omission
or imgularity. - (1) Subject to the provisions hereinbefore con- C
tained, no finding, sentence of order passed by a Court of com-
petent jurisdiction shall be reversed or altered by a Court of
appeal, confirmation or revision on account of any error, omission
or irregularity in the complaint, summons, warrant, proclamation,
order, judgment or other proceedings before or during trial or in
any Inquiry or other proceedings under this Code, or any error, D
or irregularity in any sanction for the prosecution, unless in the
opinion of that Court, a failure of justice has in fact been oc-
casioned thereby.

(2) In determining whether any error, omission or Irregularity in E
any proceeding under this Code, or any error, or irregularity in
any sanction for the prosecution has occasioned a failure of justice,
the Court shall have regard to the fact whether the objection could
and should have been raised at an earlier stage in the proceedings."

The above section, when re-read as to apply to this case, would be F
thus : No order by a court of competent jurisdiction shall be reversed or
altered by a rr.visional court on account of any omission in any proceedings
held under this Code unless the court reaches the conclusion that such
omission has occasioned a failure of justice. One of the tests to ascertain
whether such omission has occasioned failure of justice is incorporated in G
sub-section (2), i.e. whether objection had been taken at any earlier stage
regarding such omission. If no such objection has been taken earlier
normally the court cannot permit that party to raise it at the last stage.

While dealing with Section 465(2) of the Code in Kalpnath Rai v.
State, [1997] 8 sec 732 this Court has stated thus : H
130 SUPREME COURT REPORTS [2000] 1 S.C.R.
A "Sub-section (2) of Section 465 of the Code is not a carte blanche
for rendtring all trials vitiated on the ground of the irregularity of
sanction if objection then:to was raised at the first instance itself.
The sub->ection only says that 'the court shall have regard to the
fact ' that objection has been raised at the earlier stage in the
proceedings. It is only one of the considerations to be weighed but
B it does nut me<in if objection was raised at the earlier stage, for
that very reason the im:gularity in the sanction would spoil the
prosecution and transmute the proceedings into a void trial."

When the accused have chosen not to raise objection on the premise
C of omission to examine witnesses before process was issued by the
magistrate, it must be taken that they had no grievance that such omission
had occasioned failure of justice. Even if they had taken such objection
after committal of the case to the Sessions Court there was no need to turn
the switch board backwards as there is no scope for believing that such
D omission had occasioned failure of justice. This is because no evidence of
any witness would be used in the trial court unless such witness was
examined in the trial court and the accused is afforded reasonable oppor-
tunity to cross-examine him.

Now I will proceed to the next question whether the magistrate
E should have examined all the witnesses of the prosecution before the case
was committed to the Court of Session, or before process was issued to the
accused.

Power of taking cognizance of offence and the conditions for the
F same are dealt with in Chapter XIV of the Code of which Section 190
specifies the powers of a magistrate to take cognizance of the offence.
Three different sources are indicated therein of which what is material in
this case is taking cognizance "upon receiving a complaint of facts which
constitute such offence". Taking cognizance of the offence involves the
exercise of deciding whether process should be issued to the accused.
G Section 204 of the Code envisages "issue of process". It only means issuing
either summons or warrant for the purpose of bringing the accust:d before
such magistrate. The provision says that summon or warrant need be;; issued
only if the magistrate is of opinion that "thert: is sufficient ground for
proceeding". Sub-section (3) says that in any proceeding instituted on
H complaint made in writing, the summons or warrant issued shall be accom-
ROSY v. STAT~ [TI-IO MAS, J .; 131
panied by a copy of such complaint. A
I may turn back to Chapter XV of the Code which contains the
provisions to bi: invoked during the int..;rregnum betwern filing of the
complaint and issuance of process to the accused. Section 202 deab with
postponement of process. The first sub-section says that any magistrate, on
receipt of a complaint of offence, "may if he thinks fit postpone the issue B
of process against the accused'., for resorting to any of the two courses i.e.
either inquire into the case himself or direct an investigation to be mad.:.
But if the offence is triable by a Court of Session the magistrate cannot
make a direction for investigation. So tht magistrate taking cognizance of
the offence upon a complaint, when such offence is not triable by the C
Sessions Court, can adopt either of the three courses : (1) straightway-issue
the process or (ii) he can postpone the issue of process for holding an
inquiry or (iii) he can direct an investigation to be made. If the offence is
triabk by a Court of Session, it is impermissible for the magistrate to direct
an investigation. To see whetht:r in such cases he can straightway issue
process to the accused without holding the inquiry, a careful interpretation D
of sub-section (2) of Section 202 of the Code is called for. That sub-section
is hence extracted below :

"(2) In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witness on oath; E
Provided that if it appears tu the Magistrate that the offence
complained of is triable exclusively by Court of Session, he shall
call upon the complainant to produce all his witnesses and examine
them on oath."
F
It may appear, prima facie, that the question of examining all wit-
nesses would arise only when the magistrate opts to hold an inquiry,
otherwise not.

The crucial issue therefore is, when the offence, sought to be taken
cognizance of by the magistrate, is exclusively triable by the Court of G
Session, is it incumbent on the magistrate to conduct an inquiry as enjoined
in the proviso tu Section 202(2) of the Code or can he dispense with such
inquiry. The answer would nut have been difficult if we go by the placement
of the said proviso alone, as it can then be said that inquiry il> nut a must.
If the said proviso was placed in Section 200 of the Code even a doubt that H
132 SUPREME COURT REPORTS [20<Xl] 1 S.C.R.
A the legislative idea is to have all witnesses examined by the magistrate wht:n
the offence complained of is triable exclusively by the Court of Session
would have been displaced. Nonetheless the placement of the proviso is
not the only criteria in discerning the legislative intent. Indications can be
gathered from other connected provisions for taking a contrary view.

B Chapter XVI of the Code contains provisions for commencement of
proceedings before magistrate. Section 204, which is already referrt:d to,
enjoins on the magistrate to issue process if the magistrate forms the
opinion that there is ''sufficient ground for proceeding'. When the offence
is triable by a court of session the task of the magistrate cannot be
C restricted to considering whether process should be issued. There must be
sufficient ground for proceeding. Proceeding to what? In this context
Section 208 of the Code is important and hence it is extracted below :

"208. Supply of copies of statements and documents to accused
in other cases triable by Court of Session. - Where, in a case
D instituted otherwise than on a police report, it appears to the
Magistrate issuing process under Section 204 that the offence is
triable exclusively by the Court of Session, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each
of the following :
E (i) the statements recorded under section 200 or section 202,
of all persons examined by the Magistrate;

(ii) the statement and confessions, if any, recorded under section
161 or section 164;
F (iii) any documents produced before the Magistrate on which the
prosecution proposes to rely :

Provided that if that Magistrate is satisfied that any such document
is voluminous, he shall, instead of furnishing the accused with a
copy thereof, direct that he will only be allowed to inspect it either
G
personally or through pleader in Court."

Three categories of documents are mentioned in the aforesaid sec-
tion the copies of which the magistrate, who proceeds from the stage in
Section 204, has to supply to the accused free of cost (in a complaint case
H involving an offence triable exclusively by a Court of Session). As the words
ROSY v. STATE [THOMAS, J.] 133

used here are "~hall furnish", it is almost a compelling duty on the A
ruagistrate to supply the said document to the accused. How can the
magistrate supply such documents? (In the present context the documents
referred to in the third category mentioned in clause (iii) are not impor-
tant.) The first category delineated in clause (1) of Section 208 consists of
"statement recorded under Section 200 or Section 202 of all persons
B
examim:d by the magistrate." It is now important to note that the words "if
any'' have been used in the second category of documents which is
delineated in clause (ii) of Section 208, but those words are absent while
delineating the first category. In my view those two words have been
thoughtfully avoided by Parliament in clause (i).
c
If a magistrah.: is to comply with the aforesaid requirements in
Section 208 of the Code (which he cannot obviate as the language used in
the sub-section is of any indication) what is that manner in which he can
do it in a case where he failed to examine the witnesses before issuing
process to the accused? The mere fact that the word "or" is employed in D
clause (1) of Section 208 is not to be understood as an indication that the
magistrate is given the freedom to dispense with the inquiry if he has
already examined the complainant under Section 200. A case can be
visualized in which the complainant is the only eye witness or in which all
the eye witnesses were also present when the complaint was filed and they E
we::re all examined as required in Section 200. In such a case the com-
plainant, when asked to produce all his witnesses under Section 202 of the
Code, is at liberty to report to the magistrate that he has no other witness
than those who were already examined under Section 200 of the Code.
When such type of cases are borne in the mind it is quite possible to grasp
the utility of the word ''or" <vhich is employed in the first clause of Section F
208 of the Code. So the intention is not to indicate that the inquiry is only
optional in the cases me::ntioned in Se::ction 208.

It is pertinent to consider yet another aspect. It is of importance from
practical point of view also. Section 209 of the Code enjoins on the G
magistrate to commit the case to the Court of Session after complying with
the provisions in Section 208 of the Code. Once the case is committed it
proceeds to the next stage for which the venue is the Court of Session. The
trial in the Court of Session is envisaged in Chapter XVIII. It must be
borne in mind that in the:: Sessions Court a public Prosecutor alone can H
134 SUPREME COURT REPORTS (2000) 1 S.C.R.
A conduct prosecution, whether the case was instituted on police report or
on complaint. Section 226, falling within the aforesaid Chapttr, requires
the public prosecutor to make the open address to the Sessions Court. That
section reads thus :

"226. Opening case for prosecution. - When the accused appears or
-
B is brought before the Court in pursuance of a commitment of the
case by describing the charge brought under section 209, the
prosecutor shall open his case against the accused and stating by
what evidence he proposes to prove the guilt of the accused."

C If a case instituted on complaint is committed to the Court of Session
without complying with the requirements in clause (I) of Section 208 of the
Code how is it possible for the public prosecutor to know in advance what
evidence he can adduce to prove the guilt of the accused? If no inquiry
under Section 202 in to be conducted, a magistrate who decides to proceed
only on the averments contained in the complaint filed by a public servant
D (who is not a witm:ss to the core allegation) and such a case is committed
to the Court of Session, its inevitabk consequence would be that the
Sessions Judge has to axe down the case at the stage of Section 226 itself
as the public prostcutor would then be helpless to state "by what evidence
he proposes to prove the guilt of the accustd". If the offence is of a serious
E nature or is of public importance the consequence then would be miscar-
riage of justice.

In this context it is useful to know the reason for incorporating such
a proviso in Sub-stction (2) of Section 202 of the Code. For that purpose
a petp into the corresponding legal position which existed prior to the
F introduction of the new Code will be useful.

Under the Code of Criminal Procedure 1898 (old Codt) a full-
fledged magistrate inquiry was contemplated in the committal court and
the prosecution was then required to examine all the witnesses at that stage
G itself. By Act 26 of 1955 the Parliament abridged the above procedure and
it was provided therein that in police charge-sheeted cases only the wit-
nesses to the occurrence need be examined in the committal court (vide
Section 207A of tht old Code).

While the situation remained thus as provided in Section 207A of the
H Code, the Law Commission submitted its 41st Report recommending
ROSYv. STATE [THOMAS, J.] 135

various changes in the Code among which it was recommended that A
inquiries in committal courts should be dispensed with. After giving
elaborate reasons for such abolition the Law Commission made the follow-
ing recommendations also :

''We arc recommending an a subsequent chapter (referred to
earlier) the abolition of commitment inquiries. This necessitates B
certain amendments in the procedure to be followed in an inquiry
into complaints where the offence complained of is one triable
exclusively by the Court of Sessions. We recommend that the
Magistrate who takes cognizance of such offence on complaint
must himself make an inquiry into the complaint, and call upon
the complainant to produce all his witnesses and examine them on
c
oath. Further, in such cases the Magistrate should not direct an
investigation by a police officer or other person. For this purpose,
we propose two amendments of Section 202 in the form of another
proviso to sub-st!ction (1) and a proviso to sub- section (2)".
D
The recommendations so made by the Law Commission have been
virtually incorporated by Parliament in Section 202 of the present Code.
This Court has already taken the stand that it would be advantageous to
look into the deliberations made in the legislature, the objects and
Reasons for the enactments including recommendations of the Law Com-
mission for the purpose of discerning the legislative idea behind inclusion E
of any particular provision (vide Santa Singh v. State of Punjab, [1977] 1
SCR 229 and Mithilesh Kumari v. Prem Behari Khare, [1989] 2 SCC 95. In
the latter decision a two-judge Bench has stated thus :

''Is it permissible to refer to the Law Commission's Report to
ascertain the legislative intent behind the provision? We are of the F
view that where a particular enactment or amendment is the result
of recommendation of the Law Commission of India, it may be
permissible to refer to the relevant report as in this case. What
importance can be given to it will depend on the facts and cir-
cumstances of each case.''
G
Regarding Section 202 of the Code Parliament has taken the cue
from the Law Commission Recommendation and introduced all the
parameters in accordance with such recommendations. That is yet another
factor which lends support to the interpretation which I have adverted to
above. H
136 SUPREME COURT REPORTS [2000) 1 S.C.R.
A Thus I have no doubt that the proviso incorporated in Sub-section
(2) of Section 202 of the Code is not merely to confer a discretion on the
magistrate, but a compelling duty on him to perform in such cases. I wish
to add that the magistrate in such a situation is not obliged to examine
witnesses who could not be produced by the complainant when asked to
B produce such witnesses. Of course if the complainant requires the help of
the Court to summon such witnesses it is open to the magistrate to issue
such summons, for, there is nothing in the Code which prevents the
magistrate from issuing such summons to the witnesses.

I n::itcrak that if the magistrate omits to comply with the above
C requirement that would not, by itself, vitiate the proceedings. If no objec-
tion is taken at the earlier stage n:garding such omission tht: court can
consider how far such omission would have led to miscarriage of justice,
when such objection is taken at a latt:r stage. A decision on such belated
objection can be taken by bearing in mind the principles adumbrated in
Section 465 of the Code.
D
With all the above reasons l agree with my learned brother that the
impugned order passed by the High Court is to be set aside and the
Sessions judgt be directed to dispose of the case on merits in accordance
with law.
•
E v.s.s. Appeals allowed.